A.John Sebastin Royappan vs The Government Of Tamil Nadu on 15 June, 2010

Madras High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15/06/2010

CORAM

THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN

W.P.(MD)No.4421 of 2009

W.P.(MD)No.4585 of 2009

and

M.P.(MD)Nos.1 & 2 of 2009

W.P.(MD)No.4421 of 2009

A.John Sebastin Royappan ... Petitioner

1.The Government of Tamil Nadu,

Rep. by its Secretary,

Department of School Education,

Fort St. George,

Chennai.

2.The District Educational Officer,

Cheranmahadevi,

having office at Tirunelveli,

Tirunelveli.

3.Congregation of the Brothers of the

Sacred Heart of Jesus,

Rep. by its President,

Palayamkottai,

Tirunelveli.

4.The Correspondent,

St. Mary's Higher Secondary School,

Vickramasingapuram, Tirunelveli District. ... Respondents

Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus, forbearing the respondents 3 and 4 from transferring the petitioner to any other school.

W.P.(MD)No.4581 of 2009

D.William Linson Raj ... Petitioner

1.The Government of Tamil Nadu,

Rep. by its Secretary,

Department of School Education,

Fort St. George,

Chennai.

2.The District Educational Officer,

Cheranmahadevi,

having office at Tirunelveli,

Tirunelveli.

3.Congregation of the Brothers of the

Sacred Heart of Jesus,

Rep. by its President,

Palayamkottai,

Tirunelveli.

4.The Correspondent,

St. Mary's Higher Secondary School,

Vickramasingapuram,

Tirunelveli District. ... Respondents

!For Petitioners ... Mr.R.Subramanian

^For Respondents 1 & 2 ... Mrs.R.Anitha

Additional Govt. Pleader

For Respondents 3 & 4 ... Mr.M.Vallinayagam

:COMMON ORDER

Heard both sides.

2.In both the writ petitions, the petitioners challenge the power of the respondents 3 and 4 to transfer them from the 4th respondent school to other schools run by the 3rd respondent.

3.It is stated by the petitioners that the petitioner in W.P.(MD)No.4585 of 2009 was appointed on 19.06.2000 in the 4th respondent school as Tamil Pandit and the petitioner in W.P.(MD)No.4421 of 2009 was appointed on 15.06.1998 as Secondary Grade Teacher in the 4th respondent school and are working in the same school since then. According to them, though the management is running more than one school, each school is considered as a separate entity and the management has not obtained any permission to run the school as corporate body from the educational authorities. It is the common ground that they have made a complaint against the earlier headmaster for his act of misappropriation, illegal collection of fees from the students and also complained to the management about the illegal activities of the said headmaster and therefore, the management has got a grudge against them. Therefore, the petitioner in W.P.(MD)No.4585 of 2009 was informed orally that he was transferred from the 4th respondent school to St.Joseph's Higher Secondary School, Muthupettai, Ramnad District and no order of transfer was served on him. Similarly, the petitioner in W.P.(MD)No.4421 of 2009 was also orally informed that he was transferred to St.Thomas Higher Secondary School, Athipattu, Thiruvannamalai District and for him also, no order of transfer was passed. According to both the petitioners, the 4th respondent school is treated as separate entity and therefore, they are not liable for transfer to other schools run by the 3rd respondent and hence, filed the writ of mandamus forbearing the respondents 3 and 4 from transferring the petitioners to any other schools.

4.The respondents 3 and 4 filed a counter affidavit and contended that the 3rd respondent is a registered society running more than 25 aided schools and as per Rule No.11 of the bye-laws of the 3rd respondent school, the teachers and other persons employed in the educational and other institutions shall be liable for transfer from one institution to another irrespective of the District or State where such institutions are located, on administrative or other grounds and the teachers transferred from one school to another will retain their rank and seniority with reference to their past service. It is further stated that the society is maintaining a common seniority list among the teachers of all schools and in the past, teachers were transferred from one school to another school under its control and no teacher has objected to such transfer and the management is making transfers without affecting the seniority and service condition of the teachers and without causing any monitory loss to the teachers on account of their transfer. It is further stated that the transfer is an incident of service and every year transfers are being made at the beginning of the academic year and in the year 2009 also transfer orders were made in the usual course and it is on administrative grounds and the transfers are not punitive in nature and not only the petitioners were transferred, but also other teachers were transferred for the year 2009-2010 and therefore, it cannot be stated that the petitioners were transferred with mala-fide intention. It is further stated that the transfer order was issued on both the petitioners on 01.06.2009 and the petitioners were relieved from the 4th respondent school immediately and one Mr.I.Rex Amirthanathan has taken charge in the place of the petitioner in W.P.(MD)No.4421 of 2009 on 02.06.2009 itself and the petitioner in W.P(MD)No.4485 of 2009 was also relieved on 01.06.2009 on the basis of the transfer order issued on 01.06.2009. It is, therefore, stated in the counter affidavit that the transfer orders were communicated and given effect to and hence, both the writ petitions are not maintainable.

5.Mr.R.Subramanian, the learned counsel appearing for the petitioners, in both the writ petitions, that though the society is running more than 25 schools, as per the information furnished by the office of the District Educational Officer, dated 24.02.2009, the 4th respondent school is stated as a single unit and therefore, it cannot be contended that all the schools run by the 3rd respondent are coming under a corporate body and they are treated as one unit and transfers can be effected from one school to another school. According to the learned counsel appearing the petitioners, no prior permission is also obtained from the educational authorities for treating the 3rd respondent as a corporate body, for all these schools as per the Tamil Nadu Recognised Private Schools (Regulation) Act 1973 and the rules framed thereunder did not provide for any such corporate body or recognised such corporate body and therefore, contended that the petitioners cannot be transferred. He also relied upon the Full Bench judgment of this Court reported in 1998(3) MLJ 595, in the case of the Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District vs. J.Rabinson Jacob and other, in support of his contention, wherein the Honourable Full Bench of this Court has held that there is no minority corporate management recognised by the authorities and the transfer is not an incident of service, the contract does not provide for the minority institutions being affiliated as one unit and aided schools cannot transfer the teachers in the different units established and administered by it and it has no inherent power to transfer and contended that as per the Full Bench judgment of this Court, in the absence of any recognition by the educational authorities, recognising the 3rd respondent a body corporate, each school is to be treated as separate unit and as a matter of fact, it has been treated as a separate unit as per the information given by the District Educational Officer, Tirunelveli and therefore, the respondents 3 and 4 cannot transfer the petitioners from the 4th respondent school to other schools run by the 3rd respondent.

6.On the other hand, Mr.M.Vallinayagam, the learned counsel appearing for the respondents 3 and 4 contended that all the schools are coming under the body corporate of 3rd respondent, which maintains common seniority list for all the teaching and non-teaching staff and every year, they are transferring teachers from one school to another and for the year 2009-2010 also, they have made transfers and there is no mala-fide in transferring one teacher from one school to another school and it is a routine affair and no mala-fide is attributed to such transfer. He further contended that by reason of the transfer, seniority of the petitioners or their emoluments are not affected and being an incident of service, the transfers cannot be challenged by the petitioners.

7.It is further submitted that the petitioners were aware that the transfer orders were passed and the petitioner in W.P.(MD)No.4585 of 2009 filed the writ petition after he was served with the transfer order on 01.06.2009 and in so far as the petitioner in W.P.(MD)No.4421 of 2009 is concerned, even before the order of injunction was passed by this Court on 03.06.2009, the petitioner was relieved and another person has taken charge in his place and therefore, submitted that both the writ petitions are liable to be dismissed.

8.Mr.M.Vallinayagam, the learned counsel appearing for the respondents 3 and 4 also filed a common typed set of papers wherein he has enclosed the bye- laws of the 3rd respondent, the proceedings of the 3rd respondent in transferring various persons and also the list of transfers and promotions effected during the year 2009-2010. He also enclosed the common seniority list maintained by the 3rd respondent and also brought to the notice of the Court about the transfers and promotions made by the 3rd respondent from the year 2006-07, 2007-08 and 2008-09 and also the common seniority list maintained by the 3rd respondent. He further contended that even as per the appointment orders of the petitioners, they are liable to transfer by the 3rd respondent and therefore, they are bound by the appointment orders and they cannot challenge the same.

9.The learned counsel further submitted that the Full Bench judgment of this Court relied upon by the learned counsel appearing for the petitioners, reported in 1998(3) MLJ 595, in the case of the Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District vs. J.Rabinson Jacob and others, will not apply to the facts of this case and it has been made clear in the said judgment itself and the above Full Bench Judgement has been considered and interpreted by the Honourable Division Bench of this Court in the judgment reported in 2003(4) CTC 65, in the case of the Manager, R.C. Schools, Salem Social Services Society, Alagapuram, Salem and another vs. G.Vincent Paulraj, 85-C/2, Narayana Street, Peramanur, Salem and another and also the judgment reported in 2007(1) MLJ 463, in the case of Y.Balachandra Babu and another vs. District Educational Officer, Kuzhithurai Educational District and Marthandam, Kanyakumari District and others. He further contended that in the Full Bench judgment reported in 1998(3) MLJ 595, in the case of the Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District vs. J.Rabinson Jacob and others, two writ appeals and two writ petitions namely W.A.Nos.275 and 1037 of 1989 and W.P.Nos.7193 and 7235 of 1986 were considered and in the Review Application No.139 of 2007 the above Full Bench judgment was reviewed by the Honourable Full Bench of this Court consisting of the Honourable Mr.A.P.Shah, then Chief Justice, the Honourable Justice Mr.D.Murugesan and the Honourable Mrs.Justice Prabha Sridevan and this Full Bench passed an order in the review application on 12.11.2007 wherein their Lordships have held that as interpreted in the judgment reported in 2003(4) CTC 65, the Full Bench had not held that there is no right to transfer, rather it clearly provided that it would depend upon the particular facts and circumstances of each case and in the Review judgment in para 11, it has been clearly stated that as per Rule 15 of the Tamil Nadu Recognized Private Schools (Regulation) Rules 1974, corporate management is recognised in the Act and therefore, Mr.M.Vallinayagam, contended that the judgment reported in 1998(3) MLJ 595 cannot be applicable to the facts of this case.

10.I have given my anxious consideration to the submissions made by both the counsels.

11.In this case, admittedly, the 3rd respondent is running more than 25 schools and it is seen from the typed set of papers filed by the 3rd and 4th respondent and also from the counter affidavit filed by them that common seniority list is maintained for all the teaching and non-teaching staff in all these schools. Further, it is also made clear that every year the 3rd respondent is effecting transfers and promotions treating all the teachers employed in all these schools as single unit and the petitioners alone are not discriminated in the matter of transfer. It is seen from the appointment order of the petitioners that they are liable to be transferred from one school to another school run by the same management. Therefore, from the above admitted facts, it is seen that the 3rd respondent is a body corporate and is running more than 25 schools and due to administrative reasons, teachers are transferred from one school to another school without affecting the seniority and the salary.

12.Though in the Full Bech Judgment reported in 1998(3) MLJ 595, in the case of the Correspondent, Malankara Syrian Catholic School, Marthandam, Kanyakumari District vs. J.Rabinson Jacob and others, it has been held that there is no minority corporate management recognised by the authorities and the transfer is not an incident of service and the minority institutions running more than one school cannot transfer the teachers in the different units established and administered by it and it has no inherent power to transfer, it has been clarified by the subsequent Full Bench Judgment made in the Review Application No.139 of 2009 wherein it was observed relying upon the judgment in 2003(4) CTC 65, even the Full Bench has not held that there is no right to transfer rather it clearly provided that it would depend upon the particular facts and circumstances of each case. Further, in the judgment of the same Review Application in para 11, it has been held as follows: "Corporate Management is something that is recognised in the Act, Rule 15 of the Tamil Nadu Recognised Private schools (Regulation) Rules, 1974 which deals with qualifications, conditions of service of teachers and other persons provides that "In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of the rule". Therefore, the Management of several schools by one corporate body certainly has statutory recognition.

13.Further, the Honourable Full Bench in the review order made it clear that "Accordingly we dispose of the Review Petition by directing the respondent to consider the question whether the petitioners are a corporate management and whether they maintain a common seniority list and whether there has always been transfer of teachers inter-school and on the basis of the answers to the questions a decision shall be taken in accordance with law.

14.Further in the judgment reported in 2003(4) CTC 65, while the similar issue arose and dealing in a similar circumstances, the Division Bench of this Court interpreted the Full Bench judgment reported in 1998(3)MLJ 595 and held as follows: "In that case, the Full Bench examined the scheme of the Act and the Rules and held regarding transfer that,

"The question whether it is an incident of service has to be determined in the facts and circumstances of each and every case and is a question of fact.

The Bench also held that, "Transfer cannot be termed absolutely as an incident of service when it is not specifically provided for nor prohibited under the rules and regulations or conditions of service applicable to the teachers and others in a private school. It is only in particular circumstances in the fact and circumstances of each case it can be inferred to be an incident of service." On the facts of the case before the Full Bench, it is concluded that Transfer was not an incident of service as the schools in that case had been treated as separate units and separate seniority list were maintained in each individual school and admittedly there was no common seniority list.

The ratio of the decision of the Full Bench, therefore, is that transfer is not prohibited by the provisions of the Act; that if in a given case it is shown that transfer is a condition of service having regard to the terms of the contract between the parties, then transfer is permissible subject to the transferee not being deprived of the benefits of his service prior to such transfer.

The facts and circumstance of each case have to be examined before a decision can be rendered as to whether transfer is or is not permissible. Factors relevant for determining that question would be whether transfer is provided for in the contract if service, as to whether a common seniority list is maintained and as to whether, by reason of the transfer, the transferred employee is deprived of any of the benefit to which he is otherwise entitled prior to the transfer.

After dealing with the various aspects, the Division Bench approved the transfer order and it has been held in para 9 of the judgment as follows: "This Transfer does not prejudicially affect him as his seniority is preserved so also his emoluments. The appellant has placed before the Court the seniority list of its teaching staff in all the schools. It is a common seniority list which sets out the name of the teachers and their present place of working. The list is arranged chronologically with a person who joined earlier being placed above one who joined later. the list contains 367 names and sets out their ranking. The ranking of the 1st respondent Vincent Paulraj in that list is 107. It is submitted for the appellant that, that seniority of his is in no way affected by reason of his transfer and that his right to be considered on the basis of the seniority is fully protected as also his emoluments. It is also submitted by counsel for the appellant at the bar that all others who had been transferred about the time the petitioner was transferred have accepted their transfer and have taken up their posting without any demur whatsoever and the transfer is a continuing feature in the service of the teachers in the school run by the appellant.

15.Further in the judgment reported in 2007(1) MLJ 463, in the case of Y.Balachandra Babu and another vs. District Educational Officer, Kuzhithurai Educational District and Marthandam, Kanyakumari District and others, all the aspects were thoroughly discussed by the learned single Judge and held that the transfer order was upheld. Therefore, considering the judgment passed in the Review Application No.139 of 2007 and also the Division Bench judgment reported in 2003(4) CTC 65 and 2007(1) MLJ 463, I am of the view that the Full Bench judgment reported in 1998(3) MLJ 595 can not be applicable to the facts of this case and in this case, the facts are different and are covered by the judgment reported in 2003(4) CTC 65 and 2007(1) MLJ 463 and in this case also, the 3rd respondent is a body corporate as per the provision of Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules 1974 and without affecting the seniority and emoluments in an usual course, the petitioners were transferred from one school to another school and there is no mala-fide attributed to the transfer. Therefore, the transfer cannot be questioned and the order of transfer is perfectly valid in law. Further, it is stated in the counter affidavit that the petitioners were relieved even before obtaining the order of injunction and hence, they cannot claim any right by virtue of injunction order granted by this Court.

16.Hence, both the writ petitions fail and the same are dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.

To,

1.The Government of Tamil Nadu,

Rep. by its Secretary,

Department of School Education,

Fort St. George,

Chennai.

2.The District Educational Officer,

Cheranmahadevi,

having office at Tirunelveli,

Tirunelveli.

3.The Additional Government Pleader,

Madurai Bench of Madras High Court,

Madurai.